14. Detention

2021 ◽  
pp. 519-559
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Immigration Law ◽  
Common Phenomenon ◽  
Home Office ◽  
Immigration Detention ◽  
Indefinite Detention

This chapter focuses on the issue of immigration detention. The deprivation of liberty is one of the most serious infringements of fundamental human rights. In immigration law, individuals lose their liberty through the exercise of a statutory discretion by the Home Office or immigration officers. The chapter considers the statutory powers and executive guidelines, together with human rights and common law rules. The use of detention is an increasingly common phenomenon in the asylum process, and the key role of immigration bail is examined. The former use of indefinite detention for foreign terrorist suspects is discussed at the end of the chapter.

14. Detention

2018 ◽  
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt ◽  
Helena Wray
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Immigration Law ◽  
Common Phenomenon ◽  
Home Office ◽  
Immigration Detention ◽  
Indefinite Detention ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter focuses on the issue of immigration detention. The deprivation of liberty is one of the most serious infringements of fundamental human rights. In immigration law, individuals lose their liberty through the exercise of a statutory discretion by the Home Office or immigration officers. The chapter considers the statutory powers and executive guidelines, together with human rights and common law rules. The use of detention is an increasingly common phenomenon in the asylum process, and the key role of immigration bail is examined. The former use of indefinite detention for foreign terrorist suspects is discussed at the end of the chapter.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

Appraisal and Review

2020 ◽  
pp. 255-276
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Executive Power ◽  
Late Nineteenth Century ◽  
Home Office ◽  
Final Destination ◽  
The Common ◽  
Future Direction

The concluding Chapter scrutinises the validity and relevance of the book’s hitherto unseen archival files, from which its account stems. In pulling together its main themes concerning the role of civil servants, the Executive and the Judiciary in administering criminal justice, it retraces the trajectory of suspects’ rights in the late nineteenth century, from their seemingly ‘bedrock’ foundation within the common law to their rough distillation (at home and abroad) through various iterations of Judges’ ‘Rules’, themselves of dubious pedigree. In documenting this journey, this Chapter underscores how Senior Judges, confronted by Executive power impinging upon the future direction of system protections, enfeebled themselves, allowing ‘police interests’ to prevail. With Parliament kept in the dark as to the ongoing subterfuge; and the integrity of the Home Office, as an institution, long dissolved, ‘Executive interests’ took the reins of a system within which much mileage for ‘culture change’ lay ahead. This Chapter helps chart their final destination; ultimately, one where new Rules (the CrimPR) replace those exposed as failures, leading to governmental success of a distinct kind: traditional understandings of ‘rights’ belonging to suspects and defendants subverted into ‘obligations’ owing to the Court and an adversarial process underpinning determinations of guilt long-disbanded in the quest for so-called ‘efficiency’. In explaining the implications of the events discussed in this book for the issue of ‘Judicial Independence’ and the ‘Separation of Powers’, this Chapter offers a theoretical framework that illuminates the role and practices of the Senior Judiciary in criminal justice policy today.

scholarly journals Kiobel and the New Battle Over Congressional Intent

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 9-13
Author(s):  
David H. Moore
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Common Law ◽  
Customary International Law ◽  
Alien Tort Statute

Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court's second installment on the ATS. Like Sosa v. Alvarez-Machainbefore it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL's status as federal common law than by arguments about congressional intent.

Rights and Methods to Challenge Evidence and Witnesses in Civil Law Jurisdictions

2019 ◽  
pp. 839-864
Author(s):  
Lorena Bachmaier
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Trial Courts ◽  
European Court ◽  
Rules Of Evidence ◽  
The Cross

This chapter examines the primary grounds for challenging the admissibility of evidence, the methods to do it, and the potential consequences of those challenges for civil law systems. It first provides an overview of the jurisprudence of the European Court of Human Rights (ECtHR) with respect to admissibility of evidence, before discussing the exclusionary rules of evidence, focusing on the methods for excluding unreliable evidence, irrelevant or unnecessary evidence, and illegally obtained evidence. It then considers the process for challenging the admissibility of evidence, the cross-examination of witnesses, and the role of trial courts in the questioning of witnesses. It also tackles the admissibility of out-of-court witness testimonies in European civil law systems and notes the convergence between common law and civil law systems with regard to methods for excluding evidence and for questioning witnesses.

1. An introduction to the criminal law

2021 ◽  
pp. 3-25
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Common Law ◽  
European Convention ◽  
Eu Law ◽  
The Public ◽  
Moral Wrong ◽  
Public Nuisance ◽  
Harm To Others

It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against overcriminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences—from public nuisance to gross negligence manslaughter—have been challenged recently on grounds of certainty and retrospectivity.

Welfare, Asylum and the Politics of Judgment

2009 ◽  
Vol 39 (1) ◽  
pp. 119-138 ◽  
Author(s):  
LYDIA MORRIS
Keyword(s):  
Human Rights ◽  
Case History ◽  
Common Law ◽  
Policy Impact ◽  
Judicial Interpretation ◽  
Home Office ◽  
Political Dialogue ◽  
Human Rights Act ◽  
The Common ◽  
Developing Area

AbstractThis article examines 14 judgments over a ten-year period of challenge to the removal of welfare support from ‘late claimers’ for asylum. The case history spans a period of transition in Britain from the general principles of the Common Law to the implementation of the Human Rights Act (HRA) (Home Office, 1998), but indeterminacy is to the fore in such a developing area of law, allowing considerable scope for judicial interpretation. The focus of this article is therefore the cumulative dynamic of the judgments, their strategic delivery and their policy impact. The analysis demonstrates the force of general principles in yielding a solution, while also providing evidence of judgment as political dialogue over competing visions of society.

scholarly journals The criminalization of migration, detention centres, and their portrayal in the media

2021 ◽  
Author(s):  
Huda Shaikh
Keyword(s):  
Human Rights ◽  
Future Research ◽  
Policy Recommendations ◽  
Moral Panics ◽  
Immigration Detention ◽  
International Treaty ◽  
Political Ideologies ◽  
Canadian Immigration ◽  
The Media

This paper highlights the ways in which political ideologies and the media influence the securitization of borders which in turn results in and continues the cycle of the criminalization of migration. The literature review looks briefly at the development of Canadian policies towards migrants, and the way that international treaty obligations shape this. It will also look at role of the media in the creation of a moral panic, resulting in a mass fear of migrants. This is used as justification for immigration detention centres and the human rights violations within them. I employ a brief content analysis and examine the messages twelve popular media articles portray to Canadians about the centres. I find that recent articles about Canadian immigration detention centres can be divided into four themes: “How They Work”, “Public Opposition”, “Not as Bad as the U.S.” and “Prison-like Conditions”. I conclude with policy recommendations and areas for future research with an emphasis on the need to develop effective, rights-based policies for incoming migrants. Key words: Crimmigration, securitization, moral panics, policy, immigration detention centres, human rights, refugee rights, media

1. An introduction to the criminal law

2018 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Common Law ◽  
European Convention ◽  
Eu Law ◽  
The Public ◽  
Moral Wrong ◽  
Public Nuisance ◽  
Harm To Others

It is neither easy to define crime nor identify the aims of criminal law but some characteristics may be universal to every crime, including that it involves public wrongs and moral wrongs. ‘Public wrongs’ reflect the important role of the public in punishing crimes. A crime incorporating a moral wrong implies that a ‘wrong’ is done or harm to others is involved but experience suggests that morality and criminal law are not coextensive. The chapter introduces students to thinking about criminalization and the need to guard against over-criminalization. It also examines the principal sources of criminal law: common law, statute, EU law, international law, and the European Convention on Human Rights (ECHR). Problematically, important and serious offences and most defences in English law derive from common law rather than statute, and some offences, from public nuisance to gross negligence manslaughter, have been challenged recently on grounds of certainty and retrospectivity.

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